Background
Michael Eugene Bonner and Dailey LLP filed a request under Pennsylvania’s Right-to-Know Law (RTKL) with the Department of Community and Economic Development (DCED) seeking all communications between DCED, the Office of the Governor, the Office of General Counsel (OGC), and Capital Region Water that referenced the Chester Water Authority, the Stormwater Authority of Chester, or DELCORA from January through August 2024. The City of Chester is a financially distressed municipality operating under a court-appointed Receiver pursuant to the Municipalities Financial Recovery Act (Act 47), and Bonner sought records to understand the state’s role in evaluating plans to monetize Chester’s water utilities.
DCED produced 34 pages but redacted or withheld materials on three grounds: predecisional deliberations (RTKL § 708(b)(10)(i)(A)), attorney-client privilege, and attorney work product. Bonner appealed to the Office of Open Records (OOR), submitting evidence from an identical RTKL request to OGC that produced emails between DCED’s Chief Counsel and OGC staff that mentioned the Chester Water Authority — emails that DCED did not produce in response to the same request. The OOR largely sided with DCED, and Bonner petitioned the Commonwealth Court. The case was argued before a three-judge panel on April 13, 2026.
The Court’s Holding
Affirmed in part, reversed in part, and remanded. Judge Wolf, writing for the panel, issued rulings on five distinct issues. On good faith search, the court reversed the OOR. An identical RTKL request sent to OGC had produced an August 27, 2024 email between DCED’s Chief Counsel and an OGC attorney that explicitly referenced the Chester Water Authority — exactly the type of document DCED’s keyword search should have caught. DCED’s only explanation, that “such emails were not located and/or made available for production,” was “wholly deficient.” The court further held that the Department’s attempt to disclose its keyword search terms for the first time at oral argument — and then in a post-argument motion — could not be credited, because those disclosures were outside the certified record. The court reversed and remanded for DCED to conduct an adequate search.
On the predecisional deliberations exemption, the court again reversed, applying the standard from Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013): an attestation must be “detailed, nonconclusory, and submitted in good faith,” not merely track the statutory language. DCED’s Supplemental Quinn Attestation listed subjects (Chester’s water authorities, proposed courses of action) but did not explain with sufficient specificity how disclosure of particular records would reveal internal deliberations. The court directed disclosure of all records withheld on that ground. On attorney-client privilege and work product, the court affirmed — the attestations adequately identified the attorney, the client, and the nature of the communication — except for an engagement letter between Ballard Spahr and HRG Engineering that had been shared with DCED. The OOR did not address whether sharing the letter with DCED (a separate entity from the City’s Receiver) waived the privilege; the court remanded for that analysis. The court also affirmed the OOR’s decision to allow the City of Chester to participate as a direct interest participant, reading Section 1101(c)(2) of the RTKL to permit participation where the City learned of the specific documents at issue only after the standard 15-day window had passed.
Key Takeaways
- Evidence that an agency produced a responsive document in response to an identical RTKL request to a different agency is competent evidence of bad faith in the original agency’s search; an open records officer’s generic denial that the document was “not located” is insufficient to rebut it.
- An agency may not use oral argument or post-argument motions to supplement the record with new information — such as the keyword search terms used — that was not included in its attestations; appellate courts are confined to the certified record.
- To invoke the predecisional deliberations exemption under RTKL § 708(b)(10)(i)(A), an attestation must go beyond tracking the statutory language; it must explain with sufficient specificity why and how each withheld record reflects internal deliberations on a decision not yet made (Scolforo standard).
- Each email within an email chain is a separate “record” for RTKL purposes; an agency need not produce an entire thread simply because one email in the chain is responsive, but it may not withhold other emails in the chain as “nonresponsive” without properly evaluating each one individually. Haverstick v. Pa. State Police, 273 A.3d 593 (Pa. Cmwlth. 2022).
- A direct interest participant under RTKL § 1101(c) may be permitted to join an OOR appeal after the standard 15-day window if the party did not have actual knowledge of the specific records at issue within that period, so long as the three prerequisites of § 1101(c)(2) are satisfied.
Why It Matters
Bonner v. DCED will draw immediate attention from both RTKL practitioners and government transparency advocates. The good faith search holding tightens the screws on agencies that rely on keyword searches: if identical search terms used in a parallel request to another agency surface responsive documents, the first agency’s failure to find those documents is evidence of bad faith that a generic attestation cannot overcome. The court’s rejection of the Department’s oral-argument disclosure of search terms sends a pointed message that agencies must build their RTKL record before the OOR, not in appellate proceedings.
The predecisional deliberations ruling reinforces Scolforo as the governing standard and underscores how often agencies attempt to use it as a catch-all. Practitioners challenging RTKL denials should scrutinize attestations that simply mirror the statutory language — paragraph-by-paragraph recitation of the exemption criteria without document-specific facts will not satisfy the burden. The attorney-client privilege remand on the HRG Letter also signals that RTKL requesters should probe whether documents shared with government agencies have lost the protection that would otherwise apply when the sharing party (here, the City’s Receiver) is a distinct legal entity from the agency recipient.